Docket Nos. 104077, 104445 cons.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

ROBERT PATRICK, Appellant.–THE PEOPLE OF THE STATE

OF ILLINOIS, Appellee, v. EZEKIEL PHILLIPS, Appellant.

Opinion filed January 23, 2009.

JUSTICE KILBRIDE delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Thomas, Garman, and

Karmeier concurred in the judgment and opinion.

Justice Burke concurred in part and dissented in part, with

opinion, joined by Justice Freeman.

OPINION

In these consolidated appeals, we consider whether a trial court

may defer ruling on a motion in limine to exclude a defendant’s prior

convictions from use as impeachment until after a defendant’s

testimony. On appeal, Patrick claimed that the trial court erred in

delaying its ruling on his motion in limine and that the jury

instructions were erroneous. The appellate court held that Patrick was

not prejudiced by the trial court’s delay in ruling on his motion in

limine and that the jury instructions were proper. No. 1–04–1895

(unpublished order under Supreme Court Rule 23).
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In a separate appeal, defendant Phillips argued that the trial court

erred in delaying its ruling on his motion in limine and that he was not

given proper in absentia admonishments. In Phillips, the appellate

court found the trial court abused its discretion in refusing to rule on

the admissibility of prior convictions until after Phillips’ testimony,

but declined further review of the error because Phillips did not

testify. 371 Ill. App. 3d 948.

We granted defendants leave to appeal (210 Ill. 2d R. 315) and

consolidated the cases. We now reverse Patrick and remand for a new

trial, and remand Phillips to the appellate court.

I. BACKGROUND

A. Robert Patrick

Patrick was charged by indictment with multiple counts of first

degree murder (720 ILCS 5/9–1(a)(1), (a)(2) (West 2000)), attempted

first degree murder (720 ILCS 5/8–4, 9–1 (West 2000)), and

aggravated discharge of a firearm (720 ILCS 5/24–1.2(a)(2) (West

2000)). Patrick was only tried on the first degree murder counts.

Before trial, Patrick filed a motion in limine seeking to bar the

State from introducing evidence of his prior convictions for purposes

of impeachment. The trial judge refused to rule on the motion in

limine prior to defendant testifying, stating he does not give advisory

opinions.

Before Patrick’s testimony, defense counsel again requested the

judge rule on the motion in limine to bar the State’s use of Patrick’s

prior convictions, but the trial judge refused to make the ruling until

after Patrick’s testimony. The trial judge stated his procedure was not

to make such rulings until after the defendant’s testimony. The trial

judge further stated: “I do this [in] every single case. I do not give

advisory opinions. *** I don’t make an exception for anybody.”

Patrick testified, and his testimony was impeached with three prior

convictions for possession of a controlled substance.

At trial, the court gave the jury defendant’s tendered Illinois

Pattern Jury Instructions, Criminal, Nos. 7.06X and No. 26.01I (4th

ed. 2000) (hereinafter IPI Criminal 4th), the instructions used for first

degree murder, second degree murder, and involuntary manslaughter.

The instructions direct a jury that it must acquit the defendant of first
 

1Phillips apparently earlier filed a motion in limine, and the trial court

refused to rule on it, butthemotionand orderwerenot included in the record.

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degree murder before it may consider the lesser-included offense of

involuntary manslaughter. Patrick did not object to these instructions

at trial and did not raise the issue in his posttrial motion. The jury

found Patrick guilty of second degree murder.

On direct appeal, Patrick argued that the trial court erred in

refusing to rule on his motion in limine seeking to bar the State from

using his prior convictions for impeachment until after Patrick’s

testimony and that IPI Criminal 4th Nos. 7.06X and 26.01I were

erroneous. The appellate court affirmed, holding that Patrick was not

prejudiced by the trial court’s delay in ruling on his motion in limine

and that the jury was fully and fairly instructed on the offenses. No.

1–04–1895 (unpublished order under Supreme Court Rule 23).

B. Ezekiel Phillips

Phillips was charged by indictment with attempted first degree

murder (720 ILCS 5/8–4, 9–1 (West 2000)), armed violence (720

ILCS 5/33A–2(a) (West 2000)), and three counts of aggravated

battery (720 ILCS 5/12–4(A), (B)(1), (B)(8) (West 2000)).

At trial, defense counsel asked the trial court to determine the

admissibility of prior convictions if Phillips should choose to testify.1

The trial judge granted the motion in limine in part and determined

that one of Phillips’ convictions would be excluded, but stated he

could not determine whether three other convictions (armed violence,

aggravated battery, and manufacture or delivery of a controlled

substance) were more probative than prejudicial until he heard

Phillips’ testimony. Based on the trial judge’s ruling, Phillips chose

not to testify.

The jury returned a verdict of not guilty of attempted first degree

murder, but guilty of armed violence and aggravated battery. On

appeal, Phillips argued the trial court abused its discretion in refusing

to rule on his motion in limine and also contended that the trial court

erred in sentencing him in absentia after failing to admonish him of

that possibility. In affirming Phillips’ conviction, the appellate court

found the trial court abused its discretion in delaying its ruling on the
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motion in limine, but declined further review of the issue because

Phillips did not testify. The appellate court vacated Phillips’

sentences, however, and remanded for a new sentencing hearing,

finding the record did not reflect Phillips was admonished that he

could be sentenced in absentia. 371 Ill. App. 3d 948.

II. ANALYSIS

Before this court, Patrick and Phillips argue that the trial courts

erroneously deferred ruling on their motions in limine to exclude prior

convictions from use as impeachment until after their testimony.

“Generally, evidentiary motions, such as motions in limine, are

directed to the trial court’s discretion, and reviewing courts will not

disturb a trial court’s evidentiary ruling absent an abuse of

discretion.” People v. Harvey, 211 Ill. 2d 368, 392 (2004). “An abuse

of discretion will be found only where the trial court’s ruling is

arbitrary, fanciful, unreasonable, or where no reasonable person

would take the view adopted by the trial court.” People v. Hall, 195

Ill. 2d 1, 20 (2000).

In People v. Montgomery, 47 Ill. 2d 510, 517 (1971), this court

held that prior convictions must be excluded if the trial court

determines that the probative value is outweighed by the danger of

unfair prejudice. In Montgomery, this court adopted then-proposed

Federal Rule of Evidence 609 as a guide for trial courts in deciding

whether a defendant’s prior convictions should be admitted to

impeach credibility. Montgomery, 47 Ill. 2d at 519. Under the

“Montgomery rule,” evidence of a witness’ prior conviction is

admissible to attack the witness’ credibility when: (1) the prior crime

was punishable by death or imprisonment in excess of one year, or

involved dishonesty or false statements, regardless of punishment,(2)

less than 10 years has elapsed since the date of conviction of the prior

crime or release of the witness from confinement, whichever is later,

and (3) the probative value of admitting the prior conviction

outweighs the danger of unfair prejudice. Montgomery, 47 Ill. 2d at

516-17.

Nothing in Montgomery suggests the proper time for ruling on the

admissibility of a prior conviction. This court has, however, permitted

the filing of motions in limine to determine whether the State may
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impeach a testifying defendant with his prior conviction. See People

v. Williams, 161 Ill. 2d 1, 33-34 (1994); People v. Spates, 77 Ill. 2d

193, 200-05 (1979). Nevertheless, this court has not addressed

whether a trial court abuses its discretion by delaying its ruling on the

admissibility of prior convictions until after the defendant’s

testimony.

A criminal defendant’s right to testify on his own behalf, or not

to testify at all, is rooted in the fifth, sixth, and fourteenth

amendments of the United States Constitution. Rock v. Arkansas, 483

U.S. 44, 51-53, 97 L. Ed. 2d 37, 46-47, 107 S. Ct. 2704, 2708-09

(1987). A defendant’s decision whether to testify is an important

tactical determination. Brooks v. Tennessee, 406 U.S. 605, 612, 32 L.

Ed. 2d 358, 364, 92 S. Ct. 1891, 1895 (1972). A defendant who

chooses to testify faces serious risks of impeachment and may open

the door to otherwise inadmissible evidence. Brooks, 406 U.S. at 609,

32 L. Ed. 2d at 362, 92 S. Ct. at 1893. The decision to testify

ultimately belongs to the defendant but is generally made after

consultation with counsel. People v. Medina, 221 Ill. 2d 394, 403

(2006). Making the important decision to testify without an

opportunity to evaluate the actual strength of the State’s evidence

restricts the defense in planning its case. Brooks, 406 U.S. at 612, 32

L. Ed. 2d at 364, 92 S. Ct. at 1895.

Obviously, defendants benefit from rulings on the admissibility

of their prior convictions made before they decide to testify. First,

early rulings provide defendants with the information necessary to

make the critical decision whether to testify on their own behalf and

to gauge the strength of their testimony. See People v. Averett, 381 Ill.

App. 3d 1001 (2008). Second, early rulings permit defendants and

defense counsel to make reasoned tactical decisions in planning the

defense by: (1) informing the jury whether the defendant will testify;

(2) portraying the defendant in a light consistent with prior

convictions being admitted or not admitted; and (3) anticipatorily

disclosing prior convictions during the defendant’s direct

examination, thereby reducing the prejudicial effect. See Williams,

161 Ill. 2d at 35.

Our appellate court has recognized the need for early rulings on

motions addressing the admissibility of prior convictions. In People

v. Rose, 75 Ill. App. 3d 45, 52 (1979), the appellate court noted that
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the defendant’s motion contained sufficient information for the trial

court to make a ruling. Similarly, the decision inPeople v. Owen, 299

Ill. App. 3d 818, 824 (1998), acknowledged the obvious benefit to

defendants of having a ruling on the admissibility of prior

convictions. The court in People v. Ballard, 346 Ill. App. 3d 532,

544-45 (2004), also concluded that a trial court should rule on a

defendant’s motion in limine on an uncomplicated evidentiary issue

when the prejudicial effect is obvious and noted it was unclear what

more the trial court needed to make a ruling. In Phillips, the appellate

court stated:

“We cannot fathom what more the judge needed in order

to conduct the balancing test and rule on the admissibility of

the prior convictions. The defendant was deprived of the

information he needed to make an informed and intelligent

decision about whether to testify.” 371 Ill. App. 3d at 952.

Recently, the appellate court in Averett also concluded that the trial

court had all the information needed to conduct the Montgomery

balancing test and rule on a motion in limine seeking to bar prior

convictions, stating:

“Courts should not adopt such a blanket policy but, rather,

should engage in the Montgomery balancing test on a case-bycase basis, giving thoughtful consideration to each factor. It

is a matter of simple fairness that courts should rule on such

motions as soon as is practicable.” Averett, 381 Ill. App. 3d at

1019.

In addition, other jurisdictions examining the issue before this

court have found error in not ruling on the admissibility of a

defendant’s prior convictions until after a defendant’s testimony. See

Settles v. State, 584 So. 2d 1260 (Miss. 1991); State v. Ritchie, 144

Vt. 121, 473 A.2d 1164 (1984); State v. McClure, 298 Or. 336, 692

P.2d 579 (1984). These cases determined that a trial court should rule

on a defendant’s motion to bar prior convictions before the defendant

testifies unless there is some unique or compelling reason to delay the

ruling.

In Settles, the Mississippi Supreme Court held that a trial court

abuses its discretion in refusing to consider the admissibility of a

prior criminal conviction for impeachment purposes when the court
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has all the information necessary to determine the issue before the

defendant testifies. Settles, 584 So. 2d at 1265. The court noted that

some convictions are excludable for reasons that do not require a

balancing: (1) the nature of a defendant’s testimony may usually be

anticipated, and (2) “those convictions that have the highest potential

for prejudice are equally apparent.” Settles, 584 So. 2d at 1263-64.

The court reasoned:

“The dangerous convictions are for crimes which are

substantially similar to the crime charged and those which,

while not similar, have limited application to the issue of

credibility but enormous potential for overwhelming the

relevant facts of the crime charged. A convicted sex offender,

for example, may suffer substantially from that fact in a

shoplifting prosecution.” Settles, 584 So. 2d at 1264.

In Ritchie, the Supreme Court of Vermont held that a trial court

committed error in failing to rule on the defendant’s motion to

exclude evidence of prior convictions. Ritchie, 144 Vt. at 123, 473

A.2d at 1165. The court reasoned:

“[D]eferring decision on a pretrial motion to exclude evidence

of a prior conviction is prejudicial to the defendant because it

leaves the defendant ‘without a basis on which to decide

whether [to] bring the prior conviction to the attention to the

prospective jurors on voir dire.’ [Citation.] *** ‘[W]here the

defendant requests a ruling which will affect defense strategy

from the very inception of the trial, and where there is no

apparent reason to postpone the determination of the motion

other than the desire to avoid a difficult issue, *** the trial

court should rule and the defendant should be entitled to rely

on that ruling.’ [Citation.]” Ritchie, 144 Vt. at 123, 473 A.2d

at 1165.

Similarly, in McClure, the Oregon Supreme Court opined that

trial courts should rule on the admissibility of prior crimes “as soon

as possible after the issue is raised.” McClure, 298 Or. at 340, 692

P.2d at 583. The court recognized:

“It is only after a ruling on the admissibility of a conviction

that the prosecutor and defense counsel can make an informed

decision how to effectively try the case. The decision has a
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significant impact on what questions to ask the jurors during

voir dire, what to say in opening statements and the

questioning of witnesses. Whether the defendant takes the

stand changes the entire complexion of the case.” McClure,

298 Or. at 340, 692 P.2d at 583.

The court concluded: “[i]t is not realistic or necessary for a defendant

to have to wait until he is on the stand to find out whether he will be

impeached with prior crime evidence.” McClure, 298 Or. at 341, 692

P.2d at 583. Under certain circumstances, the court recognized, the

trial court may defer ruling until the defendant testifies, but this

should be the rare occasion. McClure, 298 Or. at 341, 692 P.2d at

583.

We agree with the comments of our appellate court and the courts

of our sister states recognizing defendants’ need for an early ruling

and acknowledging that, in most cases, the trial judge will possess the

information necessary to conduct a Montgomery hearing before trial.

We conclude that a trial court’s failure to rule on a motion in limine

on the admissibility of prior convictions when it has sufficient

information to make a ruling constitutes an abuse of discretion. When

applying the Montgomery rule before trial, a trial judge will certainly

be able to determine whether the prior crime was punishable by death

or imprisonment in excess of one year, or involved dishonesty or false

statements. Likewise, a trial judge can readily ascertain whether less

than 10 years has elapsed since the date of conviction of the prior

crime or release of the witness from confinement. Moreover, in all

but the most complicated cases, a judge will have enough information

before trial to weigh the probative value of admitting the prior

conviction against the danger of unfair prejudice to the defendant. See

Settles, 584 So. 2d at 1263-65; Ballard, 346 Ill. App. 3d at 544-45;

Phillips, 371 Ill. App. 3d at 952.We acknowledge there may be some

rare cases when a trial court cannot effectively conduct a Montgomery

balancing test without hearing the defendant’s testimony. But, those

rare cases should be the exception, and not the rule.

Thus, in those rare cases, we admonish trial judges that it is

essential for appellate review that a sufficient basis be articulated to

support a delay in ruling on a motion in limine on the admissibility of

prior convictions. See People v. Rivera, 221 Ill. 2d 481, 508 (2006)

(“without an adequate record, consisting of all relevant facts, factual
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findings, and articulated legal bases ***, the trial court’s rulings may

be virtually immune from appellate review”).

We now examine whether there was an abuse of the trial court’s

discretion in either of these cases, as well as other issues raised by the

parties.

A. Robert Patrick

1. Motion in Limine

In the case of People v. Patrick, the trial judge summarily refused

to consider the admissibility of any of Patrick’s prior convictions. The

trial judge offered absolutely no justification for delaying his ruling

on Patrick’s motion in limine, stating only that his procedure in every

case, without exception, was not to give advisory opinions. Here,

Patrick merely sought a determination of whether the law as applied

to the facts of his case would permit the use of any or all of his prior

convictions for impeachment. Patrick was at least entitled to have the

trial judge base his decision to defer a determination on the specific

facts of his case, and to determine, before the defendant testified if

possible, whether any of the convictions would be excluded as a

matter of law.

In Patrick’s case, the trial judge’s blanket refusal in every criminal

case to rule on any motions in limine seeking to bar introduction of

prior convictions until after the defendants testified was arbitrary and

without reason. When a trial court’s ruling is arbitrary, we will not

hesitate to find an abuse of discretion. See Hall, 195 Ill. 2d at 20.

In effect, the trial court abused its discretion by refusing to

exercise any specific discretion. There is no justification for a trial

judge’s blanket policy to withhold ruling on all motions in limine on

the admissibility of prior convictions until after a defendant’s

testimony. Here, the trial court’s refusal to rule was not based on any

specific facts. We hold, accordingly, that the court’s application of a

blanket policy of refusing to rule on all motions in limine on the

admissibility of prior convictions until after a defendant’s testimony

amounted to an abuse of discretion.

The State argues that even if the trial court abused its discretion

in deferring its decision on the motion in limine, Patrick was not

prejudiced by the error. In Chapman v. California, 386 U.S. 18, 24,
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17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828 (1967), the Supreme

Court determined that when the error is of a constitutional magnitude,

a defendant is entitled to a new trial if the error was not harmless

beyond a reasonable doubt.

We cannot say that the trial court’s error in Patrick’s case was

harmless beyond a reasonable doubt. Here, Patrick was unjustifiably

required to make a tactical decision without the ability to evaluate the

impact it would have on his defense. Patrick’s counsel was unable to

inform the jury whether Patrick would testify and was anticipatorily

unable to disclose Patrick’s prior convictions to lessen the prejudicial

effect the convictions would have on his credibility. As a result,

Patrick was substantially prejudiced.

Patrick’s decision whether to testify was critical because he relied

on a theory of self-defense. While his testimony was not absolutely

necessary because other testimony corroborated his theory of selfdefense, knowing whether his prior convictions were going to be used

for impeachment was a vital factor that needed to be weighed. If

Patrick had known before testifying that his prior convictions were

going to be admitted, he may have decided not to testify, or at least he

could have informed the jury earlier of the prior convictions to lessen

the negative impact.

The impact of the convictions on Patrick’s credibility is clear

from the State’s focused and repeated argument urging the jury not to

believe a three-time convicted felon. The jury’s verdict of guilty of

second degree murder indicates that, to some degree, the jurybelieved

Patrick was justified in his use of force. Applying the Chapman

standard, we have no doubt that the error in this case was not

harmless to Patrick. Accordingly, we believe a new trial is warranted,

and we reverse the judgments of the appellate and circuit courts and

remand the cause to the trial court.

We note that Patrick has not argued the evidence in this case was

insufficient to convict him. Thus, there is no double jeopardy

impediment to a new trial. People v. Wheeler, 226 Ill. 2d 92, 134

(2007).

2. Jury Instructions
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Patrick also contends that the jury was erroneously given Illinois

Pattern Jury Instructions, Criminal, Nos. 7.06X and No. 26.01I (4th

ed. 2000), the instructions used for first degree murder, second degree

murder, and involuntary manslaughter. These instructions preclude

the jury from considering involuntary manslaughter unless it acquits

the defendant of first degree murder. Patrick argues that the jury

should have considered first degree murder and involuntary

manslaughter at the same time. The State counters that: (1) Patrick

failed to preserve any objection to the instructions; and (2) the jury

instructions given were proper. Patrick admits that he failed to

preserve this issue, but asks this court to review the issue under the

plain error doctrine.

This court has recognized that “a defendant forfeits review of any

putative jury instruction error if the defendant does not object to the

instruction or offer an alternative instruction at trial and does not raise

the instruction issue in a posttrial motion.” People v. Herron, 215 Ill.

2d 167, 175 (2005). Here, Patrick forfeited the issue by failing to

object to the instructions and failing to raise his claim of error in a

posttrial motion.

Moreover, Patrick waived any objection to the jury instructions

by proffering the allegedly erroneous instructions to the trial court.

Patrick cannot now complain that the instruction he tendered was in

error. See People v. Parker, 223 Ill. 2d 494, 508 (2006) (a defendant

may not directly attack a jury instruction tendered by the defense). We

decline to address Patrick’s plain-error claim because Patrick invited

any error by submitting the jury instruction. See People v. Carter, 208

Ill. 2d 309, 319 (2003) (“Under the doctrine of invited error, an

accused may not request to proceed in one manner and then later

contend on appeal that the course of action was in error.

[Citations.]”). Accordingly, we conclude that Patrick failed to

preserve his claim of error in the jury instructions.

B. Ezekiel Phillips

1. Motion in Limine

In Phillips, the trial judge granted the motion in limine in part and

determined that one of Phillips’ convictions would be excluded but

stated he could not determine if three other convictions were more
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probative than prejudicial until he heard Phillips’ testimony. Based on

the trial judge’s ruling, Phillips chose not to testify. The appellate

court found the trial court abused its discretion in refusing to rule on

the admissibility of prior convictions until after Phillips’ testimony

but declined further review of the error because Phillips did not

testify. 371 Ill. App. 3d 948.

We determine that the issue of the trial court’s refusal to rule on

Phillips’ motion in limine seeking to bar the use of prior convictions

for impeachment was not preserved for review because Phillips chose

not to testify. In Luce v. United States, 469 U.S. 38, 41-43, 83 L. Ed.

2d 443, 447-48, 105 S. Ct. 460, 463-64 (1984), the Supreme Court

held that a defendant who did not testify at trial was not entitled to a

review of the trial court’s denial of a motion in limine seeking to

exclude his prior convictions. The Court reasoned that any possible

harm flowing from the trial court’s denial of a motion in limine to bar

impeachment by a prior conviction is wholly speculative absent the

defendant’s testimony and the prosecution’s attempt to impeach the

defendant through use of the prior convictions.

This court adopted the Luce reasoning in People v. Whitehead,

116 Ill. 2d 425 (1987). In Whitehead, the trial court denied the

defendant’s two motionsin limine, seeking to limit cross-examination

of the defendant’s psychiatric expert and defendant’s admissions

made during his treatment concerning prior attacks on young girls.

Whitehead, 116 Ill. 2d at 442-43. The trial court in Whitehead

“indicated that the State would be afforded an opportunity to raise the

earlier admissions of knife attacks on young girls depending upon the

testimony actually elicited on direct examination of [the psychiatrist]

and the defendant.” (Emphasis added.) Whitehead, 116 Ill. 2d at 443.

The trial court also refused the defendant’s offer of proof on the scope

of his direct testimony that defendant argued would have allowed the

trial court to decide the proper scope of cross-examination in limine.

Whitehead, 116 Ill. 2d at 443. On appeal, the defendant claimed these

rulings prompted him to drop his insanity defense and to refuse to

take the stand, and he claimed the psychiatrist was not called to testify

“because evidence of prior crimes would have been allowed.”

Whitehead, 116 Ill. 2d at 443.

In recognizing the trial court’s ruling as conditioned on the direct

testimony actually given, we stated:
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“This court should not speculate what the substance of [the

psychiatrist’s] and the defendant’s testimony on direct

examination would have been or what the prosecution would

have asked during cross-examination ***, and it follows that

no decision on the appropriate scope of cross-examination can

be had on appeal of this case. Counsel must stand on their

objections and call the witnesses, thus opening the possibility

that an erroneous decision on the scope of examination might

occur and require review ***, or forgo calling the witnesses

and adopt an alternative strategy. But defense counsel may not

have it both ways by altering their trial strategy to make the

best of the trial court’s order, depriving the reviewing court of

a reviewable record, and still maintain that the order was

erroneously entered.” (Emphasis added.) Whitehead, 116 Ill.

2d at 443-44.

Although the trial court declined the defendant’s offer to review

the substance of the testimony that would have been given on direct

examination, this court required defense witnesses and defendant to

testify and obtain a definitive ruling before the issue could be

properly reviewed on appeal. This court’s rationalein Whitehead goes

beyond the Luce rationale and provides this court’s independent basis

for requiring a defendant to testify and preserve the issue for review.

In People v. Thompkins, this court also held that a defendant must

testify to preserve a ruling on a motion in limine. Thompkins, 161 Ill.

2d at 193, citing Luce, 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460.

In bothWhitehead and Phillips, the defendant could not be certain

whether the disputed evidence would be admitted until afterthe direct

testimony was given. In both cases, the defendants were making

decisions about whether to present direct testimony without knowing

if the unwanted evidence would be admitted. Nonetheless, this court

ruled in Whitehead that defendants must take the risk and present the

testimony for the issue to be reviewable. In light of this court’s

independent rationale in Whitehead, there is no basis for the separate

opinion’s claim that Luce and Thompkins are inapposite and do not

control this case.

Here, Phillips chose not to testify. Accordingly, we hold that

Phillips failed to preserve his right to appellate review of this issue.
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2. Sentencing Hearing

The State seeks cross-relief, arguing the appellate court erred in

remanding the matter for a new sentencing hearing because “[t]he

record [did] not reflect that [the sentencing in absentia] admonition

was given to the defendant.” 371 Ill. App. 3d at 954. The State admits

it initially conceded this issue before the appellate court but now

informs this court that it found a bond slip in the trial court file

(signed by Phillips) that somehow was not included in the record on

appeal. The State sought and was granted leave to supplement the

record on appeal with this bond form. Phillips did not object. The

bond slip warned Phillips of the possibility of trial and sentencing in

absentia. According to the State, Phillips was properly sentenced in

absentia, and he waived his right to be read the section 113–4(e)

admonishment. Therefore, the State requests we affirm Phillips’

sentence.

Here, the appellate court did not have the benefit of the bond slip

in the record when it decided this issue. Accordingly, we remand this

cause to the appellate court for supplemental briefing and a

reexamination of this issue in light of the bond slip that is now part

of the record.

III. CONCLUSION

We hold that the trial court in Patrick abused its discretion by

arbitrarily delaying its ruling on the motion in limine until after

Patricks’ testimony. We further determine that Patrick failed to

preserve the jury instruction issue. Accordingly, we reverse Patricks’

conviction and remand to the circuit court for a new trial.

In Phillips, we hold that Phillips failed to preserve his right to a

review of the trial court’s refusal to rule on his motion in limine by

choosing not to testify. We further remand Phillips to the appellate

court to reexamine the sentencing in absentia issue in light of the

bond slip that is now a part of the record on appeal.

No. 104077–Reversed and remanded.

No. 104445–Cause remanded.
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JUSTICE BURKE, concurring in part and dissenting in part:

The common issue in the two consolidated cases before this court

is whether a trial court abuses its discretion when it refuses to rule on

a defendant’s motion in limine to determine what prior convictions

may be admitted for impeachment purposes until after the defendant

takes the stand and testifies. The majority finds, and I agree, that

when a defendant files a motion in limine seeking to have his prior

convictions excluded for purposes of impeachment, the trial court

abuses its discretion when, without justification, it opts to defer ruling

on the motion until after the defendant testifies. As the majority

recognizes, unwarranted delay in ruling on such motions (1) prevents

the defendant from having information necessary for making the

“critical decision” about whether to testify and (2) hinders the

defendant’s ability to make “reasoned tactical decisions” in planning

his defense. Slip op. at 5.

I also agree with the majority that, henceforth, trial courts should

enter judgment on a defendant’s motion in limine before the

defendant testifies in all but those extremely rare instances where the

court “cannot effectively conduct a Montgomery balancing test

without hearing the defendant’s testimony” (slip op. at 8) and, in such

cases, trial courts should articulate on the record the basis for the

delayed ruling (slip op. at 8). Where I part ways with the majority is

in its inconsistent and inequitable application of this new rule to the

cases at bar.

In Patrick, the defendant was charged with murder for shooting

and killing a man at a laundromat. The defendant claimed he shot the

victim accidentally, after provocation. Prior to trial, the defendant

filed a motion asking the court to exclude, for impeachment purposes,

his three prior convictions–all for possession of a controlled

substance. The trial court refused to rule on the motion until after

defendant testified, at which time the court denied the motion and

permitted the State to impeach defendant’s credibility with the three

prior convictions.

The majority finds, with regard to Patrick, that the trial court

abused its discretion because its only justification for refusing to rule

on defendant’s motion in limine prior to the defendant’s testimony

was its professed “procedure in every case, without exception *** not

to give advisory opinions.” Slip op. at 9. Moreover, the majority finds
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that, because a trial court’s error in failing to rule on such motions in

limine is of “constitutional magnitude” (slip op. at 9), the error will

require reversal unless there is a showing of harmlessness beyond a

reasonable doubt. The majority then concludes that the error here

does not meet this standard and that defendant was “substantially

prejudiced” in that he was “unjustifiably required” to make important

tactical decisions, including whether or not he should testify, without

the benefit of the court’s ruling. Slip op. at 10.

In finding reversible error in Patrick, the majority never looks

beyond the trial court’s error in refusing to rule. In other words, when

deciding that the trial court’s refusal to rule was error which was not

harmless beyond a reasonable doubt, the majority does not engage in

the typical harmless-error review–that is, it does not look to see

whether the defendant suffered no actual prejudice, either because the

trial court’s ultimate ruling on the admissibility of the prior

convictions was correct, or because the evidence overwhelmingly

supported the guilty verdict. Instead, the majority finds, in Patrick,

that the very fact that the court did not rule prior to defendant

testifying was inherently prejudicial and that this prejudice infected

the entire proceeding. As the majority explains:

“Here, Patrick was unjustifiably required to make a tactical

decision without the ability to evaluate the impact it would

have on his defense. Patrick’s counsel was unable to inform

the jury whether Patrick would testify and was anticipatorily

unable to disclose Patrick’s prior convictions to lessen the

prejudicial effect the convictions would have on his

credibility.” Slip op. at 10.

The majority also notes how “critical” is was for Patrick to have

the court rule prior to trial because the defendant relied on a theory of

self-defense and “knowing whether his prior convictions were going

to be used for impeachment was a vital factor that needed to be

weighed” in forming his decision about whether to testify. Slip op. at

10.

Despite the majority’s finding that the failure to rule on such

motions in limine is an error of “constitutional magnitude,” the

majority abandons its harmless beyond a reasonable doubt analysis

when reviewing Phillips. Citing to Luce v. United States, 469 U.S.

38, 41-43, 83 L. Ed. 2d 443, 447-48, 105 S. Ct. 460, 463-64 (1984),
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and this court’s decisions in People v. Whitehead, 116 Ill. 2d 425

(1987), and People v. Thompkins, 161 Ill. 2d 148 (1994), the majority

holds, “the issue of the trial court’s refusal to rule on Phillips’ motion

in limine seeking to bar the use of prior convictions for impeachment

was not preserved for review because Phillips chose not to testify.”

Slip op. at 12. I believe this holding is inconsistent with and

contradictory to the majority’s own holding just paragraphs earlier

with regard to Patrick and, therefore, incorrect.

In Phillips, the defendant was charged with attempted murder,

armed violence, and aggravated battery in relation to a stabbing

incident. Here, as in Patrick, the defendant raised the defense of selfdefense, claiming that the victim initially swung at him with a piece

of lumber. As in Patrick, the defendant filed a motion in limine

seeking a ruling on the admissibility of his prior convictions. The trial

court excluded one prior conviction, but refused to rule on the

admissibility of three other prior convictions–armed violence,

aggravated battery, and manufacture or delivery of a controlled

substance.

Here, as in Patrick, the trial court’s refusal to rule on the motion

in limine prior to defendant testifying was an abuse of discretion. As

the appellate court noted, not only did the trial court refuse to rule

prior to trial, it refused to rule even when defendant renewed his in

limine motion after the State finished presenting its evidence and after

defendant’s other witnesses had testified. The appellate court stated,

“this court does not understand what more the trial court needed to

make its ruling.” Phillips, 371 Ill. App. 3d 952.

Moreover, under the court’s own reasoning in Patrick, the error

cannot be harmless beyond a reasonable doubt because Phillips, like

Patrick, was forced to make a critical decision–whether to

testify–withoutthe benefit of information vital to that decisionmaking

process. Unsure what prior convictions the court would let in, the

defendant could not determine what impact the exercise of his right

to testify would have on his defense. Although Phillips chose not to

testify, he could not have made a knowing and intelligent waiver of

his constitutional right to testify because he did not know which, if

any, of his prior convictions would be used for impeachment. Further,

here, as in Patrick, a ruling by the trial court on the motion in limine

was vital because defendant raised a defense of self-defense, a
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defense that is generally better received by the jury when the

defendant testifies.

If, as the majority holds in relation to Patrick, a defendant suffers

“substantial prejudice” as a result of the trial court’s refusal to decide,

prior to defendant testifying, which of the defendant’s prior

convictions will be admitted for impeachment, we must find that

Phillips suffered the same “substantial prejudice” that Patrick

suffered. In addition, because the majority has just held in relation to

Patrick that the trial court’s refusal to rule is an error of constitutional

dimension and that substantial prejudice stems from the fact that a

defendant in this position is unable to make a knowing and intelligent

decision about whether to testify, it cannot be said that the error in

Phillips was harmless beyond a reasonable doubt. Under the

majority’s own analysis in Patrick, the fact that Phillips did not testify

cannot be part of the calculus in any way. Because Phillips suffered

the same prejudice as Patrick, even though he did not testify, the

disparate treatment of the two defendants before this court is not

logical or equitable.

As noted above, in support of its determination that Philips failed

to preserve for review the trial court’s error in failing to rule on the

motion in limine, the majority cites Luce, Whitehead and Thompkins.

I find these cases to be distinguishable.

In Luce the Court held that “to raise and preserve for review the

claim of improper impeachment with a prior conviction [under Rule

609(a) of the Federal Rules of Evidence], a defendant must testify.”

Luce v. United States, 469 U.S. 38, 43, 83 L. Ed. 2d 443, 448, 105 S.

Ct. 460, 464 (1984). In reaching this determination, the Court

reasoned that a decision under Rule 609(a) is a preliminary ruling on

a question “not reaching constitutional dimensions.” Luce, 469 U.S.

at 43, 83 L. Ed. 2d at 448, 105 S. Ct. at 464. The Court further

explained that a defendant must testify to preserve his right to appeal

because, without a complete record, a reviewing court is handicapped

in its efforts to evaluate the propriety of the lower court’s balancing

of the probative value of the prior conviction against its prejudicial

effect. The Court also noted:

“Even if these difficulties could be surmounted, the reviewing

court would still face the question of harmless error. See

generally United States v. Hasting, 461 U.S. 499 (1983). ***
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Requiring that a defendant testify in order to preserve Rule

609(a) claims will enable the reviewing court to determine the

impact any erroneous impeachment may have had in light of

the record as a whole.” Luce, 469 U.S. at 44, 83 L. Ed. 2d at

449, 105 S. Ct. at 465.

Clearly, Luce addressed a different issue from the one before us here.

Luce addressed the propriety of reviewing a trial court’s ruling on the

admissibility of prior convictions for impeachment purposeswhen the

defendant chooses not to testify. Luce never considered whether it

was error for a trial court to refuse to make an admissibility

determination unless the defendant decided to testify.

More importantly, the rationale employed by Luce to support its

ruling that a defendant must testify to preserve his appeal is not

applicable here based on the majority’s own findings in this same

opinion with regard to Patrick. As noted above, the Luce Court

believed that the propriety of a court’s Rule 609(a) preliminary ruling

was not a question of constitutional dimension, whereas the majority

here holds that the error involved in the cases at bar is one of

constitutional dimension. Further, the majority holds in relation to

Patrick that the error is not harmless beyond a reasonable doubt

simply because the defendant could not have made a knowing and

intelligent waiver of his right to testify. The Court in Luce, however,

held that it was necessary for a defendant to testify to preserve his

right to appeal so that there would be a record which a reviewing

court could use to determine whether the trial court’s ruling on the

admission of prior convictions, if error, was harmless when compared

to the weight of the evidence. The majority, in relation to Patrick,

never engages in this type of harmless-error review–it never weighs

the harm against the weight of the evidence.

Whitehead and Thompkins are similarly inapposite. In both cases,

rulings were entered on the defendants’ motions in limine prior to

trial. In Whitehead, the defendant filed two motions in limine–one to

prevent the State from cross-examining defendant’s expert witness

with regard to admissions defendant had made when he underwent

psychiatric evaluation during an earlier prosecution; the other to

prevent the State from impeaching the defendant with those same

admissions. Both motions were denied. The trial court held that the

earlier admissions could be raised, but made no specific ruling about
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the extent of inquiry that would be permitted. Whitehead, 116 Ill. 2d

at 442-43. The trial court declined the defendant’s invitation to

delineate, prior to trial, the appropriate scope of cross-examination,

finding it would depend on what the defendant and his witness

testified. Whitehead, 116 Ill. 2d at 442-43. As a result of the trial

court’s rulings, neither the defendant nor his expert witness took the

stand. On review, this court, applying the “logic of Luce,” ruled that

no decision could be made regarding the appropriate scope of crossexamination because defendant’s decision not to testify and to

withhold the testimony of his expert witness deprived the reviewing

court of a reviewable record.

In Thompkins, the defendant, in a postconviction petition, sought

review of the trial court’s unfavorable ruling on defendant’s motion

in limine to preclude his impeachment with prior convictions. In a

two-sentence paragraph, we declined to address the claim, finding it

waived because it could have been raised on direct appeal, and then

noting as an aside that, pursuant to Luce, defendant’s failure to testify

at trial would have meant that the issue would have been waived even

on direct appeal. Thompkins, 161 Ill. 2d at 193.

In these cases which the majority relies on, the defendant obtained

a ruling on his motion in limine–something that the defendants in the

consolidated cases before this court did not receive. They are

distinguishable on that basis. However, even if they were not

distinguishable, they are overruled by the majority’s own judgment

in relation to Patrick. While this court may have adopted the logic of

Luce in Whitehead and Thompkins, the majority, by its decision in

regard to Patrick, has now limited the Luce rationale to situations in

which the defendant has obtained a ruling on his motion in limine

and, thus, any error in the trial court’s exercise of discretion is not of

constitutional dimension.

In sum, I agree with the majority that requiring a defendant to

testify before he can obtain a ruling on his motion in limine to decide

the admissibility of prior convictions for impeachment purposes

results in substantial prejudice to the defendant. As the majority holds

in relation to Patrick, this prejudice stems from the defendant’s lack

of “vital information” which prevents him from making a knowing

and intelligent decision about whether to testify and hinders his

ability to make tactical decisions about how to present his defense.
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Accordingly, the prejudice such defendants suffer prevents them from

receiving a fair trial and, therefore, is not harmless, whether or not

they choose to testify.

CONCLUSION

I agree with the majority that a defendant is substantially

prejudiced when a trial court refuses to rule, prior to trial, on a

defendant’s motion in limine to determine what prior convictions are

admissible for impeachment purposes. Because the prejudice stems

from the lack of information, which prevents the defendant from

making a knowing and intelligent decision about whether to testify,

the trial court’s error is of constitutional dimension and cannot be

deemed harmless. Accordingly, I cannot agree with the majority’s

inconsistent and inequitable holding that a defendant who does not

testify does not preserve the error.

For the above reasons, I concur in the majority’s resolution of the

appeal in Patrick, but respectfully dissent from the majority’s

resolution of the appeal in Phillips.

JUSTICE FREEMAN joins in this partial concurrence and partial

dissent.